Colorado’s judicial records policy faces questions, concerns

Attorneys, residents and a lawmaker are criticizing the Colorado Supreme Court ’s open records policy, which is designed to replace state open records laws after courts exempted themselves from state transparency requirements.

The state Supreme Court held a public hearing Thursday to take input on the transparency rules it formulated and which Chief Justice Nancy Rice implemented on a preliminary basis with a judicial directive.

State Rep. Polly Lawrence, R- Douglas County , said it is inappropriate for one branch to exempt itself from the Colorado Open Records Act when all other branches have to abide by it.

COURT CRITIC: State Rep. Polly Lawrence is pulling together legislation that would require the judicial branch to abide by open records laws.

“No branch should be held unnecessarily to a different standard,” she told the justices. “The ( Chief Justice Directive 15-01 ) rules drastically give more discretion about what information it releases to the public … I find this lack of transparency in government to be unacceptable.”

In 2012, the Colorado Appellate Court ruled the judicial branch is not subject to CORA.

But Thursday’s hearing might be moot because Lawrence and other lawmakers are putting together legislation next session to require the courts to abide by the same transparency laws that other Colorado governments must follow.

RELATED: Lawmakers move to return courts to transparency

Denver attorney Chris Forsyth said the court has a conflict of interest and appearance of impropriety in passing a rule that governs its own conduct.

“This open records snafu at the judicial branch reeks of impropriety,” he said. “It doesn’t foster the faith of the people in this institution.”

Forsyth pointed out there were no members of the public on the court’s Public Access Committee that wrote the open records rule, something Watchdog.org pointed out last year.

Thursday’s hearing was the first chance for the public to weigh in on the court’s transparency proposal.

Denver media attorney Steve Zansberg, who is president of the Colorado Freedom of Information Coalition , submitted a written statement describing problems with the rule, including a reference to the Colorado Commission on Judicial Discipline denying Watchdog.org records of its budget.

RELATED: Judicial discipline agency doesn’t provide budget

The document pointed out that CCJD and the Independent Ethics Commission are inexplicably exempt from the rules and the rules restrict personnel files to a greater extent than what non-judicial agencies must provide under CORA.

“The Colorado Open Records Act has withstood the test of time,” Zansberg told the court. “It’s a process of extensive public comment.”

But Fifth Judicial District Chief Justice Mark Thompson , who led a committee that helped draft the rules, said they closely follow CORA but make adjustments for the needs of the judicial branch.

“Administrative records should be accessible whenever possible,” he said. “Colorado Open Records Act should be used as example whenever judicial branch records are similar.”

He was one of two people — both judicial employees — who supported the rule, while four people testified against it.

The Supreme Court did not act on the rule Thursday. Spokesman Rob McCallum said there is no requirement that justices, who have repeatedly refused to comment about court transparency policy, discuss or vote on the proposed rules in public.

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Arthur Kane

Arthur Kane is Watchdog’s Colorado bureau chief. You can follow him at @ArthurMKane. If you have tips or investigative ideas, email him at akane@watchdog.org